HKSAR v. CHEN JIAHAO

DCCC 876/2017

[2018] HKDC 250

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 876 OF 2017

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

1.  The defendant pleaded guilty to 3 charges of burglary.

Summary of facts

2.  The defendant burgled 3 different subdivided residential units in Sham Shui Po and Cheung Sha Wan on 3 separate occasions between December 2016 and March 2017, stealing property worth approximately $25,000, $56,995 and $38,347 respectively.

Charge 1

3.  The tenant of a subdivided residential unit at Room B, 2^nd floor, 556 Fuk Wa Street, Sham Shui Po found that the door to the unit was prized open with sign of ransacking inside when he returned home at around 8am on 24^th December 2016, having left at around 5pm the previous day after locking the door.

4.  $25,000 cash was found missing from a drawer.

5.  The matter was reported to the Police. Upon investigation, one fingerprint was lifted next to the keyhole of the said drawer. Subsequent examination revealed that the print matched that of the left thumb of the defendant.

Charge 2

6.  About 3 months later, on 17^th March 2017, the tenant of a subdivided residential unit at Room 2, 3^rd floor, 473A Castle Peak Road, Cheung Sha Wan returned home at around 7pm to find the door of the unit left ajar, with signs of ransacking inside.

7.  Ms Li had left the unit at around 8am on the day after closing the door.

8.  A number of items were found missing and the matter was reported to the Police. The missing items are set out in a table at paragraph 6 of the Summary of Facts.

Charge 3

9.  9 days after, at around 8:30pm on 26^th March 2017, the tenant of another subdivided residential unit at Room A, M/f, 574 Fuk Wa Street, Cheung Sha Wan found the lock to the unit’s door broken when he returned to the unit at around 8:30pm.

10.  Mr Zhao had left the unit at around 5:40pm on the same day.

11.  Various items as listed out in the table at paragraph 8 of the Summary of Facts were found to be missing and the matter reported to the Police.

The defendant’s arrest

12.  At around 5:14pm on 27^th March 2017, patrolling Police officers spotted the defendant acting furtively at the first floor of a building at 20 Kim Shin Lane in Cheung Sha Wan.

13.  The defendant was intercepted. Upon inquiry, he led the Police officers to Room A on the first floor of the building. Some identity cards and bankcards that did not belong to the defendant were found lying on a table inside.

14.  Under caution, the defendant admitted to have burgled the premises in charges 2 and 3, as well as producing some items that were stolen in the charge 3 burglary.

15.  Certain items of property stolen in charge 2 were recovered upon a search of the premises.

16.  The defendant arrested for the burglaries in charges 2 and 3. Once the defendant’s fingerprint was found to match that found in relation to charge 1, he was also arrested for the charge 1 burglary.

Previous convictions

17.  The defendant is of previously clear record.

Mitigation

18.  The defendant is 27. He was born in mainland China and educated up to secondary school level there. He came to Hong Kong in 2013 but is not yet a permanent resident here.

19.  The defendant is married. His wife, who is also a mainland Chinese resident, and their three-year old son, who was born in Hong Kong, live together in Cheung Sha Wan. The defendant’s parents reside in the mainland but are in court to support the defendant.

20.  The defendant used to work as an electrical technician earning about $23,000 to $25,000 per month. $5,500 of that would go towards rental payment, about $3,000 to $4,000 would be sent to the defendant’s parents for their living expenses, and the rest would be for the upkeep of their family in Hong Kong.

21.  Mr Steel for the defendant informed the court that the defendant had foolishly committed the burglaries to feed his gambling habit.

22.  The defendant, his wife and father each wrote in mitigation. In gist, they say that the defendant is a good husband and filial son, that he committed the offences out of character and ask for leniency.

23.  Mr Steel suggests that the burglaries were opportunistic burglaries, but he did not make further submissions on how that should affect the adoption of the guideline starting point of 3 years’ imprisonment for burglary of a domestic premises.

24.  Mr Steel relies on the case of HKSAR v Ma Ming [2013] 1 HKLRD 813 to suggest that, since in relation to charge 3, the defendant’s confession was the only evidence which supported the conviction, the court should make minor adjustments to the total sentence when applying the totality principle.

Sentencing considerations

25.  The maximum sentence on conviction upon indictment for burglary is that of 14 years’ imprisonment.

26.  It is trite law that burglary of a domestic premises attracts a sentence of 3 years’ imprisonment for a first offender[1]. This sentence is then subject to adjustment upon any aggravating or mitigating factors.

27.  It is not disputed by the defendant that all 3 premises he had burgled were domestic premises.

28.  I find that there are no aggravating factors in the defendant’s commission of the individual burglaries. There is no evidence that heavy equipment or tools were used by the defendant to gain entry. The premises were all vacant when burgled and although there were signs of ransacking, there is no suggestion of extensive, or any, damage done to the interior.

29.  I find, however, that they are not opportunistic burglary that would allow this court to depart from the usual sentence.

30.  In relation to the first burglary, the premises was a subdivided room on the 2^nd floor of the building. In relation to the second burglary, the premises was on the 3^rd floor of a different building. In relation to the third burglary, the premises was on the Mezzanine floor of the building.

31.  It was not the case that the defendant was walking along the street and happened to see a door left open. The defendant must have entered the building first and went to the subject floor on purpose. The only reasonable inference must be that he entered the buildings with the specific intention of looking for vacant and unguarded rooms to enter and steal from.

32.  As for mitigating factors, I find that the defendant’s personal circumstances not so unusual as to warrant a discount in sentence. His gambling habit would not absolve him of his decision to burgle.

33.  The only mitigating factor is the defendant’s timely guilty plea.

34.  For charge 1 and charge 2, I will adopt a 3 year starting point, which is discounted to 2 years’ imprisonment for the defendant’s plea.

35.  As for charge 3, I accept Mr Steel’s submission that the defendant’s frank and timely confession was the only evidence supporting his conviction on charge 3. He should be given some credit for the assistance rendered.

36.  For that, I will reduce the starting point sentence of 36 months by 3 months to that of 33 months’ imprisonment.

37.  The sentence for charge 3 after plea is 22 months’ imprisonment.

Totality

38.  The 3 burglaries were committed on 3 different days and on 3 different premises. They cannot be regarded as arising from one single transaction.

39.  Each of the burglaries resulted in a not insignificant amount of property being stolen. The total value of property stolen is $120,342.

40.  The third burglary in charge 3 was committed just 9 days after the second burglary in charge 2.

41.  However, as recognized above, the defendant’s confession to the burglary in charge 3 contributed significantly to his conviction on the charge.

42.  Taking a step back, I order that 9 months of the sentence in charge 2, and 6 months of the sentence in charge 3 be served consecutively to the sentence in charge 1, the balance concurrently.

43.  The final total sentence is, therefore, 39[2] months’ imprisonment, or 3 years and 3 months’ imprisonment.